LEONARD TENGANIZA VERSUS THE REGISTERED TRUSTEES OF THE SOCIETY OF PRECIOUS BLOOD

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND CASE NO. 7611 OF 2024 BETWEEN LEONARD TENGANIZA ………………………………………1ST PLAINTIFF VAILETH GOLDEN TENGANIZA …………………………… 2ND PLAINTIFF MALITA MTANGO TENGANIZA…………………..…………3RD PLAINTIFF RAHELI CHAPI MATUMBI…………………………………….4TH PLAINTIFF AIDANI NYAUNGUSI LENG’ANDA……………..…………….5TH PLAINTIFF VENANCE GIDIONI TENGANIZA………….…………..…….6TH PLAINTIFF VINISETI NGHABULA…………………………………………7TH PLAINTIFF EMMANUEL SAMAMBA TENGANIZA…………………..……8TH PLAINTIFF STEPHANO MASUWI LUGANO………………………………9TH PLAINTIFF DAMIANI MAZENGO SANGUYA……………………………10TH PLAINTIFF ASHELI MAZENGO SANGUYA…………………….………..11TH PLAINTIFF ELIA MATUMBI CHAPI………………………. ……………..12TH PLAINTIFF ZAKAYO SEGANJE MAGWELA………………….……………13TH PLAINTIFF DANIEL MATUMBI CHAPI……………………….…………..14TH PLAINTIFF LENARD DAUDI TENGANIZA…………………………………15TH PLAINTIFF JOHN MASUWI LUGANO……………………………………16TH PLAINTIFF RICHARD LYATI………………………………………………17TH PLAINTIFF VERSUS THE REGISTERED TRUSTES OF THE SOCIETY OF PRECIOUS BLOOD (C.PP.S )……………………..………….1ST DEFENDANT 1|Page MTUMBA VILLAGE COUNCIL……………………………………..2ND DEFENDANT FR. EGIDIUS SENEDA…………………………………………….3RD DEFENDANT FR. CHESCO MSAGA……………………………………………….4TH DEFENDANT FR. GREGORY MKHOTA……………………………………………5TH DEFENDANT THE ATTORNEY GENERAL ………………………………………….6TH DEFENDANT RULING Date of the last order: 09/07/2024 Date of the Judgment: 12/08/2024 LONGOPA, J.: The Plaintiffs instituted a Land case against the Defendants on trespass to land located at Mtumba Ward within in the City of Dodoma. The Plaintiffs allege to be legal owners of 100 acres of an unsurveyed land. The Plaintiff allege that in 2015 the 2nd Defendant without any colour of right sell the land did allocate the Plaintiffs’ land to the 1st, 3rd, 4th and 5th Defendants. It is pleaded by the 1st, 3rd, 4th and 5th Defendants that in 2010 they applied to be granted land and they were allocated the land in the same year 2010. In the written statement of Defence for the 2nd and 6th Defendants four Preliminary Points of Objections were raised, while the1st, 3rd, 4th and 5th Defendants raised a single Preliminary Objection, namely: 1. That, the suit is bad in law for suing the 2nd Defendant who is non -existing party. 2. That, the Plaint is bad in law for contravening Order VI Rule 14 of the Civil Procedure Code. 3. That, the Plaint is bad for contravening Order VI Rule 15 (1) of the Civil Procedure Code. 2|Page 4. That, Plaint is bad in law for contravening Order VII Rule 7 read together with Rule 8 of the Civil Procedure Code. 5. That the suit has been filed out of time prescribed by the Law of Limitation Act, Cap 89 R.E. 2019. On 9th July 2024, the parties appeared before me and it was decided that appeal would be disposed of by way of written submissions. The parties complied with the order of submission that were agreed. I commend them for industrious submissions. The 2nd and 6th Defendants submitted in respect of first point of preliminary objection that in accordance with section 4(1) of the Dodoma Capital City (Declaration) Act, 2018 the provisions of the Local Government (Urban Authorities) Act and other laws apply to the Act. The Village Council referred to as the 2 nd Defendant is non- existing party as upon declaration of the city being declared as Capital City then Village Council ceased to exist. On the second point of preliminary objection that Plaint is contravening Order VI Rule 14 of the Civil Procedure Code, it was submitted that the advocate for the Plaintiff is the one who signed and the Plaintiff did not sign. This is despite the mandatory requirement use of the word which is defined to be compulsory under section 53 (2) of the Interpretation of Laws Act, Cap 1 R.E. 2019. On the third point is that verification is violative of Order VI Rule 15(1) of the Civil Procedure Code as the same is verified by the advocate and not the parties. It is the parties or one of the parties who can certify the Plaint. An advocate cannot verify the pleadings and appear representing the party to the case. 3|Page In respect of the fourth point relates to the contravention of Order VII Rules 7 and 8 of the Civil Procedure Code, it was submitted that the Plaintiffs have applied for general relief to be declared owner of the whole suit land while each of them had his own portion and there is representation among them. Thus, 2nd and 6th Defendants prayed for striking out of the suit. On the other hand, it was submitted for 1st, 3rd, 4th and 5th Defendants that suit is time-barred in the sense that cause of action arose in 2010 while the case was instituted in 2024 some 14 years later thus contravening sections 9(2) and 5 of the Law of Limitation Act, Cap 89 R.E. 2019 on recovery of land and accrual of the cause of action. The case Moto Mabanga versus Ophir Energy Plc and 6 Others, Civil Appeal No 119/2021 at page 14 was cited to restate the position taken by the court that preliminary objection will not be taken in abstract without reference to some facts plain on the pleadings which must be looked at without reference to examination of any other evidence. It was reiterated that in Babito Limited versus Freight Africa NV-Belgium &Others, Civil Appeal No. 355 of 2020[2023] TZCA 17586 (1 September 2023) at page 14, that: “In this particular instance we find the preliminary point of objection was on pure point of law upon which plaint and its annexures were adequate to determine it. We, in our considered view, do no align with Chadha’s contention that the point of preliminary objection was mixed facts and law….it is settled legal principle that a question of jurisdiction is fundamental and has to be answered before the court proceeds with the conduct of the case. This is because it goes to very root of authority of the court to adjudicate upon cases of different nature. Otherwise, it will be risky and unsafe to proceed with the trial of a case.” 4|Page According to the 1st, 3rd, 4th and 5th Defendants time spent in negotiations or consultations regarding the matter is not the one that triggers cause of action and the same does not stop the time from running. The cases of Fortunatus Masha and John Obongo vs Claver Motors Limited, Civil Appeal No. 114 of 2019, CAT@ Mwanza, on page 13, and Makamba Kigome &Another vs Ubungo Farm Implements Limited & PSRC, Civil Appeal No 109 of 2005 (Unreported) were cited to restate the position that negotiations not stop the time for institution of civil cases to run thus a prudent person would initiate a civil litigation in court while attempts to resolve amicably are undertaken. It was firmly argued that since 24th September 2010 is when the 2nd Defendant did formally grant the land to the 1st, 3rd, 4th and 5th Defendants. Thus, time commenced running at that juncture. The defendants submitted that in accordance with section 3(1) of the Law of Limitation Act, Cap 89 R.E. 2019 once a suit is instituted out of time the same must be dismissed despite the fact that limitation of time is set out as a defence or not. The Plaintiff opposed the preliminary points of objection by attacking the 2 nd and 6th Defendant’s counsel attempt to raise new ground that was not pleaded. The Plaintiff challenged the first point of objection that declaration of the area to be urban area does not make the same automatically changing the administration from Village Council to Ward. It is not pure point of law but it would require evidence. It was argued that even if it is true then Order I Rule 9 of the CPC can rescue the same as non-joinder or misjoinder is not fatal. It would appropriate in the circumstances that oxygen principle can be applied to substitute the Dodoma City Council in place of the Mtumba Village Council. 5|Page The case of Elikana Kulola vs Mkokwa Local Government and 2 Others, Land Case No. 08 of 2002, High Court of Tanzania at page 16 held that: “there is no dispute that the Plaintiff wrongly joined Mkokwa Local Government as 1st defendant to this suit. However, the remedy of misjoinder is not to strike out the suit but to order the removal of mis-joined party by amendment.” Regarding the second limb on that plaint is bad for failure of the Plaintiff to sign the same, it was submitted that this objection has no merits as the Plaint was signed by the counsel for Plaintiffs. It was argued that Order VI Rule 14 of the CPC allows the advocate to sign on behalf of the party where such party is unable to sign. It was reiterated under Article 107A (2) of the Constitution of the United Republic of Tanzania, Cap 2 R.E. 2002 allows the court to focus on substantive justice thus do away with technicalities. At this juncture, the cases of Yakobo Magoiga Gichere vs Peninah Yusuph, Civil Appeal No 55 of 2017, CAT at pages 13-14; and Nyuta Peter Kabezi t/a Nyudiah Enterprises vs Herodius Sulus Mborowe and 3 Others, Civil Case No. 153 of 2019, HCT at page 8 were cited to reiterate the application of Oxygen principle to ensure substantive justice and effect of the failure to append signature to the pleadings which can be served by the Oxygen principle but not striking out or dismissal. On the third limb of objection that the Plaint is not verified by the Plaintiffs, it was submitted that it cannot defeat the suit and through Oxygen principle as expressed in the case of Hilde Happy Lyimo vs Gingo Real Estate Ltd, Land Case No 363 of 2023, at pages 5-7, the High Court was to the effect that failure to verify or sign the pleading would not nullify or affect the jurisdiction of the court. With regard to the fourth limb, it was submitted that it is misconception of the Defendant’s Counsel as the prayers contained in Plaint are lucid as the Plaintiffs are praying to be declared as the lawful owners of the land located at Mtumba area in 6|Page Dodoma City, order that acquisition of the land by 1st, 3rd , 4th and 5th Defendants is illegal, null and void ab initio; and permanent injunction against the Defendants or their agents to interfere with peaceful enjoyment of land by the Plaintiffs. On the fifth limb of point of Preliminary Objection regard the suit being time barred, it was submitted that the suit was filed within time of 12 years as the time commenced to be reckoned from 27th March 2015 when the 1st, 3rd, 4th and 5th Defendants signed the agreement for purchase of land and building of the fence thus Plaintiffs realized that the land was trespassed into. The Counsel for Plaintiffs cited a case of Oscar Karsan Kanji vs Abdallah Hassan (Suing as a legal personal representative of Hassan Abdallah(deceased), Civil Appeal No. 9 of 2020, where the Court of Appeal stated that cause of action is reckoned from the time when the party realizes that land in question is trespassed into. It is argued that when some of the Plaintiffs attended meetings in 2010 regarding allocating the land to the 1st, 3rd, 4th and 5th Defendants was premature thus Plaintiffs could not institute the suit. The Plaintiffs cited a case of Registered Trustees of Baraza Kuu la Waislamu Tanzania (BAKWATA) vs Bodi ya Wadhamini Jumuiya ya Waislamu Kumwelulo and 4 Others, Civil Appeal No 629 of 2022, Court of Appeal of Tanzania at page 12 held that: …therefore according to the allegations quoted above, the cause of action accrued in 2015 when the appellant became aware that the suit land has not been registered in the its name but the name of the second respondent. It was the Plaintiffs’ prayer at this juncture that the preliminary objections raised are without merits thus deserve dismissal with costs. 7|Page In rejoinder, the learned State Attorney for 2nd and 6th Defendants reiterated that points of preliminary objection are purely on point of law and that suing the non- existing Village Council instead of the Ward is fatal to the proceedings. The suit should be defeated as there is possibility of obtaining non -executable decree in case the claim of the Plaintiffs succeeds. On the second limb, it was reiterated that Plaint was signed by the advocate for Plaintiffs, and not the Plaintiffs themselves contrary to the requirement of the law thus rendering the Plaint unsigned. On the third limb arising out of the second limb is that verification should be done by the party or parties not otherwise. Verification of the Plaint by any other person is clear contravention of the law. It was reiterated that advocate could not verify as the person verifying is expected to be called as witness on the matter. The fourth limb was rejoined that there ought to have been specific reliefs for each of the Plaintiff as each of them is claiming a particular piece of the land in question and the matter is not representative suit. With regard to the fifth limb of objection, it was submitted further that the cause of action arose in 24/09/2010 as the Plaintiffs in Paragraph 7 and Annexure KWK -2 acknowledged that complaints were there since 2010. This is when the 1 st Defendant was allocated that land in question. It was reiterated that Plaintiffs were fully aware that alleged trespassed the disputed land. Moreover, it was argued that argument that in 2010 whilst some of the Plaintiffs participated in in a meeting allocating the land to Defendant was premature is an admission that cause of action arose in 2010. It was reiterated that according to the 8|Page principle in Registered Trustees of Baraza Kuu la Waislamu Tanzania (BAKWATA) vs Bodi ya Wadhamini ya Waislamu Kumwelulo and 4 Others as cited by the Plaintiffs, the right of action begins to run when the one becomes aware of the transaction or act that is complained of. In concluding the rejoinder, the counsel for the 1st, 3rd, 4th and 5th Defendants argues that as the Plaintiffs possessed knowledge over the alleged trespass. They chose not to institute the case at that time only to come up recently. To address the validity or otherwise of the Preliminary Objection, it is crucial to address what amounts to preliminary point of objection. These are issues that make the suit to be not maintainable due to particular defects that goes to the root of the suit. In case the preliminary point of objections is correct then such suit would always be disposed of on the preliminary stages through dismissal or striking out of the suit. In the case of COTWU (T) OTTU Union and Another vs Hon. Iddi Simba, Minister of Industries and Trade and 7 Others (Civil Application 40 of 2000) [2000] TZCA 14 (30 June 2000) (TANZLII), at page 3, the Court of Appeal stated that: In Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] E.A. 696 where the Court considered what constitutes a preliminary objection. The Court said at p. 700 DE:- a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. 9|Page In the case of Gasper Peter vs Mtwara Urban Water Supply Authority (MTUWASA) (Civil Appeal No. 35 of 2017) [2019] TZCA 28 (28 February 2019) (TANZLII), at page 10, the Court of Appeal stated that: In the case of Mukisa Biscuit Manufactures Ltd. v. West End Distributors Ltd [1969] E.A. 696 which has often been cited with approval by the Court, the nature of a preliminary objection was stated as follows:- “preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." Essentially, Order VIII Rule 2 of the Civil Procedure Code, Cap 33 R.E. 2019 is restating the question of the preliminary point of objection. It imposes the right on the defendant to inform the court on non -maintainability of the suit in question. It states that: 2. The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. To answer the two points of Preliminary Objection regarding the signing of the pleadings and verification, it is important to underscore the rationale for the pleadings in civil suits. There is plethora of authorities that points out to the parties to the suit. 10 | P a g e In the case of Charles Richard Kombe t/a Building vs Evarani Mtungi and 2 Others (Civil Appeal No. 38 of 2012) [2017] TZCA 153 (24 March 2017) (TANZLII), at pages 9-10, the Court of Appeal stated that: It is a cardinal principle of pleadings that the parties to the suit should always adhere to what is contained in their pleadings unless an amendment is permitted by the Court. The rationale behind this proposition is to bring the parties to an issue and not to take the other party by surprise. In Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) (TANZLII), at page 13, the Court of Appeal reiterated the role of pleadings in the following words: The other remark which we find ourselves compelled to make relates to pleadings. In doing so we cannot do better than reiterate what we said in James Funke Gwagilo vs. Attorney General [2004] TLR 161 whereby we underscored the function of pleadings being to put notice of the case which the opponent has to make lest he is taken by surprise. From that same decision we reiterated another equally important principle of law that parties are bound by their own pleadings and that no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. Having demonstrated that pleadings are crucial in bringing the parties to a civil suit to the issues in dispute. Ordinarily, pleadings are made by the parties to the civil suit and not advocates. The reason is simple and straightforward that parties are the one versed with material facts relating to the dispute in question. As such, pleadings essentially are in exclusive mandate of the parties to the case. In so doing, the parties 11 | P a g e may be assisted by advocates to a limited extent. There are aspects that are reserved for the parties themselves and those which an advocate can do on behalf of the party to a case. In respect to signing and verification of pleadings, the Civil Procedure Code, Cap 33 R.E. 2019 is categorically clear on the two aspects. Order VI Rules 14 and 15 lucidly reflect as follows: 14. Every pleading shall be signed by the party and his advocate (if any); provided that, where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. 15.-(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. Indeed, the law places the duty to sign and verify the pleadings on a party to the case. Signature by an advocate is optional. The use of words, if any, essentially presupposes that ordinarily the pleadings are to be signed by the party. The Plaint before this Court is signed only by one Faraja Shayo, learned advocate and it is verified by the same advocate on information based on his own knowledge and information received from the Plaintiffs. On verification the learned advocate had stated that she is dully authorised to verify on behalf of the Plaintiffs. 12 | P a g e I concur with the defendants’ counsel that as per law signing of pleadings is the reserve of the party to a case. Exceptionally, an advocate can sign on behalf of the parties if dully authorised to sign. There is no material disclosure that advocate for Plaintiffs was authorised to sign. The law states that party must sign. The Counsel for the party signs only on two instances. First, jointly with the party/parties to the case. Second, when authorised to sign by the parties. The second aspect must be supported by such authorization. There is none on record. Thus, the second and third points of preliminary objections are meritorious. I uphold them. The other point of preliminary objection relates to the parties to the case. The learned State Attorney for the 2nd and 6th Defendants have lamented on the inclusion of non -existing party namely the 2nd Defendant. Order I Rule 3 of the Civil Procedure Code, Cap 33 R.E. 2019 is illustrative on who can be joined as defendants. It states that: 3. All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if separate suits were brought against such persons, any common question of law or fact would arise. It should be pointed at the outset that it is the duty of the parties to a case to draft their own pleadings and join all the parties against whom claims are made. That duty was emphasized in the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) (TANZLII), at pages 11- 12, the Court stated that: By way of emphasis, we wish to refer, with approval, to a passage in an article by Sir Jack I.H. Jacob bearing the title, "The Present 13 | P a g e Importance of Pleadings," first published in Current Legal Problems (1960) at p. 174 thus: “As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings .... For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation.” It is an obligation of a party to a case to join all persons that are necessary in determination of the dispute. It is essentially the first and foremost duty of a party to a case to join all necessary parties to the case. The Plaintiff has a sole discretion to choose who to sue and comply with the rules on the parties to suits. Among the parties to be joined in suits are a proper and necessary party. The parties concur that Mtumba Village Council no longer exists as the enactment of the Dodoma Capital City (Declaration) Act, No. 5 of 2018 categorically allows the application of the Local Government (Urban Authorities) Act, 1982 (Cap 288 R.E. 2002). Essentially, urban authorities refer to cities, municipalities, townships etc. It does not include Village Council. The only divergence is that Plaintiffs are of the view 14 | P a g e that inclusion of the Village Council is not fatal and through oxygen principle it can be changed through a stroke of pen to replace it with Dodoma City Council. However, the counsel for 2nd and 6th Defendants is of the view that joinder of non-existing party is fatal thus the suit should be struck out. The effect of non- joinder of such necessary party was reiterated in the case of Abdulatif Mohamed Hamis vs Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018) (TANZLII), at pages 27-28, the Court of Appeal stated that: Our CPC does not have such a corresponding proviso but, upon reason and prudence, there is no gainsaying the fact that the presence of a necessary party is, just as well, imperatively required in our jurisprudence to enable the courts to adjudicate and pass effective and complete decrees. Viewed from that perspective, we take the position that Rule 9 of Order 1 only holds good with respect to the misjoinder and nonjoinder of non-necessary parties. On the contrary, in the absence of necessary parties, the court may fail to deal with the suit, as it shall, eventually, not be able to pass an effective decree. It would be idle for a court, so to say, to pass a decree which would be of no practical utility to the plaintiff. It is certain that where there is non-joinder of necessary party, such suit should be struck out. In the case of Ongujo Wakibara Nyamarwa vs Beatrice Gryson Mmbaga (Civil Appeal No.122 of 2021) [2024] TZCA 74 (20 February 2024) (TANZLII), at pages 5-6, the Court noted that: However, we are similarly aware of a settled position of the law that non-joinder of a necessary party is bound to defeat a suit. The 15 | P a g e learned counsel for the parties were in agreement that the non-joining of the Commissioner for Lands, the Registrar of Titles, the Temeke Municipal Council and the Attorney General rendered the suit unmaintainable. We agree with them. In the instant suit, there is Mtumba Village Council as party to the case as 2 nd defendant. In Paragraph 3 of the Plaint on description of this defendant it is indicated that the defendant is a local government authority established under the Local Governments (Urban Authorities) Act, 1982. My perusal of the Local Government (Urban Authorities) Act reveals non- existence of the Village Council in urban areas. Thus, it is settled view of this Court that the 2nd Defendant being nonexistent authority at the time of institution of the suit makes the whole suit not maintainable before this Court. As a result, I find merits in the first point of preliminary objection. With regard to the fourth point, it my view that it has no merits. The reason is that Plaintiffs having a common claim against the Defendants rightly stated the claim and relief sought. The reliefs sought are categorically clear to include declaration that Plaintiffs are lawful owners of the disputed land and that the acquisition of the land by 1st, 2nd, 3rd, 4th, and 5th Defendants is nullity ab initio. I shall proceed to disregard this ground of the preliminary objection for being devoid of any merits. The time limitation aspect was vehemently argued by the counsel for the 1 st, 3rd, 4th and 5th Defendants and resisted by the Counsel for the Plaintiffs. The two have advanced rival arguments on when did cause of action arise. The Plaintiffs throughout 16 | P a g e the Plaint they have stated that the cause of action commenced in 2015 while the Defendants claim that cause of action commenced in 2010. The parties are not in concurrence on the when exactly the cause of action arose. Close scrutiny of the pleadings indicates that the question as to when right to sue accrued is contested by parties. The pleadings have set different times. It is true that a principle in Babito Limited vs Freight Africa NV-Belgium & Others (Civil Appeal No.355 of 2020) [2023] TZCA 17586 (1 September 2023), at page 14 the Court of Appeal reiterated that pleadings and its annexures are adequate to determine the preliminary objection based on time limitation. The Court observed that: In this particular instance we find the preliminary point of objection was on a pure point of law upon which the plaint and its annexures were adequate to determine it. In the instant matter, it can be noted that all paragraphs namely paragraphs 11 to 19 of the Plaintiff focuses on the aspects that occurred from 2015 onwards. At the same time, 1st, 3rd, 4th and 5th Defendants are of the view that the cause of action arose in 2010 after the allocation of the land in question to them whilst some Plaintiffs were part and parcel of the process. As a result, it is settled view of this court with regard to when the cause of action arose is contentious and fundamentally cannot be determined without parties be allowed to call and tender evidence to establish their respective positions. It must be ascertained by evidence. 17 | P a g e The principle in the case of Gasper Peter vs Mtwara Urban Water Supply Authority (MTUWASA) (Supra) is lucid that preliminary objection cannot be invoked where there are facts to be ascertained. As the time when the matter arose is contentious, it would not be appropriate for this Court to determine the same as per pleadings available given the same cannot be ascertained with clarity and precision without parties calling for evidence before the court. I shall therefore decline to determine this point of preliminary objection as in my view the same is not pure point of law given the rival pleadings indicating different dates. This aspect, though very crucial, should be reserved for full determination when the parties are heard properly on merits as in course of tendering evidence such question of time limitation would be well addressed. In totality of events, I shall uphold three points of preliminary objection based on failure to sign and verification of pleadings by the party in violation of Order VI Rules 14 and 15 of the Civil Procedure Code and the joinder of non -existing party to the case namely the Village Council. I shall proceed to strike out the suit for being unmaintainable as a result of the clear violation of the law governing pleadings. Each party shall cater for its own costs. It is so ordered. DATED at DODOMA this 12th August 2024. E.E. LONGOPA JUDGE 12/08/2024. 18 | P a g e